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Melios v Qantas Airways Ltd

Melios v Qantas Airways Ltd

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[2019] FWC 5029

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gary Mellios
v
Qantas Airways Limited
(U2019/3179)

DEPUTY PRESIDENT ASBURY

BRISBANE, 19 JULY 2019

Application for an unfair dismissal remedy – Extension of time – Whether exceptional circumstances present – Representative Error – Whether Applicant blameless in delay – Exceptional circumstances present – Extension of time granted.

BACKGROUND

[1] This Decision concerns an application by Mr Gary Mellios under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Qantas Airways Limited (Qantas). Mr Mellios’ employment was terminated on 26 February 2019. The application was made on 20 March 2019.

[2] By virtue of s. 394(2) of the Act an application under s. 394 of the Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 394(3). The application was made one day outside the time required in s.394(2) of the Act. It is therefore necessary to determine whether a further period should be allowed under s. 394(3) of the Act for the application to be made.

[3] Directions were issued requiring Mr Mellios to file material he relies on to establish that there are exceptional circumstances justifying the grant of a further period in which to make his unfair dismissal application, by 4.00pm on Tuesday 21 May 2019. Qantas was directed to file and serve any material in relation to the matter by 4.00pm on Tuesday 28 May 2019. The matter was listed for Jurisdiction Hearing on Tuesday 18 June 2019. Qantas opposes the grant of a further period and argued that there is some inconsistency in Full Bench authority dealing with the matter of representative error.

[4] Both parties sought to be legally represented and permission was granted on the basis that I was satisfied that it would allow the matter to be dealt with more efficiently having regard to its complexity and that no issues of fairness arose.

[5] Mr Mellios was represented by Ms Cate Hartigan of Counsel who was instructed by Mr Luke Murray, Assistant Secretary of the Australian Licenced Aircraft Engineers’ Association (the ALAEA). Qantas was represented by Mr Andrew Pollock of Counsel who was instructed by Ms Jessica Tuffin of Ashurst.

EVIDENCE AND SUBMISSIONS

[6] The ALAEA on behalf of Mr Mellios responded to the Directions by filing an outline of submissions in relation to a further period being granted to Mr Mellios, and witness statements made by Mr Mellios and Mr Stephen Purvinas, Federal Secretary of the ALAEA. Mr Mellios relies on representative error on the part of the ALAEA as the reason for the delay in making his application. The evidence and submissions can be summarised as follows.

[7] Mr Mellios was notified of allegations against him which can be broadly described as using his Company issued iPad to view inappropriate material both in and outside the workplace, and was suspended from duty on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWC 5029
Decision Date: 19 JULY 2019

CaseChat Overview and Summary

The case of Melios v Qantas Airways Ltd involved the applicant, Mr. Melios, who sought an unfair dismissal remedy from the employer, Qantas Airways Ltd. The dispute arose from the dismissal of Mr. Melios from his employment and his subsequent application for unfair dismissal remedy. The Federal Circuit and Family Court of Australia heard the matter.

The primary legal issue before the court was whether the applicant's delay in lodging his unfair dismissal application could be excused due to exceptional circumstances. The applicant argued that the delay was due to a representative error and that he was blameless in the delay. The court was required to determine whether these circumstances constituted exceptional circumstances warranting an extension of time to lodge the application.

The court found that the representative error was a significant factor in the delay and that Mr. Melios was blameless in the delay. The court considered that the representative's error in failing to lodge the application on time was a substantial factor in the delay and that Mr. Melios had taken reasonable steps to ensure that the application was lodged in a timely manner. The court held that the circumstances were exceptional and granted an extension of time for the applicant to lodge his unfair dismissal application.

As a result of the court's decision, Mr. Melios was granted an extension of time to lodge his unfair dismissal application. The court found that the exceptional circumstances present in the case warranted an extension of time, and the application was subsequently lodged and determined on its merits.

Orders